Judge Ryan concluded with the following: The court rejects plaintiff’s conclusory testimony regarding defendant’s “impulsivity.” It was unsupported by any facts. Plaintiff admitted she invited defendant to her home on September 18. Both parties agree defendant has not come to plaintiff’s home uninvited, a strong indication an FRO is not “necessary” to protect plaintiff. No impulsive conduct of defendant was established. Likewise, the court rejects plaintiff’s claim that “other women” should be protected from defendant. The second prong of Silver mandates the court consider “whether it should enter a restraining order that provides protection for the victim.” Silver, 387 N.J. Super. at 126 (emphasis added). No case law or reading of the PDVA supports the entry of an FRO for the protection of the general public or other persons with whom defendant may come into contact. Moreover, the entry of an FRO in favor of a particular plaintiff would not protect other third parties unrelated to the case in which the FRO was entered. Based upon all of the foregoing, the court dismisses the domestic violence complaint and vacates the TRO.
This close case calls into question the use of bench trials to decide final restraining order hearings instead of jury trials. They were many judges that would have entered a final order under the facts of this case. The imposition of the harsh penalties associated with a final restraining order should not turn on which judge happens to be assigned to the case.
The Court noted the following in the footnotes of its decision: Relevant factors with regard to whether a “dating relationship exist are: (1) Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization? (2) How long did the alleged dating activities continue prior to the acts of domestic violence alleged? (3) What were the nature and frequency of the parties’ interactions? (4) What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly? (5) Did the parties demonstrate an affirmation of their relationship before others by statement or conduct? (6) Are there any other reasons unique to the case that support or detract from a finding that a “dating relationship” exists? Andrews, 363 N.J. Super. at 260.
Neither party provided copies of any text messages, but both testified their understanding and expectation was to have “rough sex.” During her initial testimonial description of the incident, plaintiff only briefly mentioned the second punch alleged in the complaint. The court concludes that subsections (a) and (c) of the harassment statute are not applicable to the facts of this case. The court does not deny plaintiff relief because she invited defendant to her home for consensual sexual relations. She is deserving of victim status if subjected to an act of domestic violence. But when considering whether a restraining order is “necessary” under the second prong of Silver, the court concludes plaintiff’s invitation to defendant is relevant and probative.
